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Is Holder’s New Calif. Job Unconstitutional?

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​By hiring former U.S. Attorney General Eric Holder as outside counsel, California may be signaling that it will take a leading role in challenging President Donald Trump's initiatives. But some Republicans say that retaining Holder violates the state's constitution.

Many Trump initiatives run counter to existing California laws, meaning that business and HR professionals in the state would have to change their current practices to stay in compliance if the initiatives become federal laws.

Republican Assemblyman Kevin Kiley, R-Roseville, Calif., wrote in a letter to Susan Duncan Lee, state senior assistant attorney general, that the Legal Services Division of the state Attorney General's office has 1,592 attorneys and professional staff in six legal offices with nearly 30 practice areas of law. Kiley suggested that if these attorneys can adequately perform the legal services for which Holder, now an attorney at Covington & Burling in Washington, D.C., has been retained, then Holder's hiring violates Article VII of the state constitution.

However, California Assembly Speaker Anthony Rendon, D-Paramount, justified the hiring by saying, "While we don't yet know the harmful proposals the next administration will put forward, thanks to Donald Trump's campaign, cabinet appointments and Twitter feed, we do have an idea of what we will be dealing with, and we must be prepared. The Covington team will be an important resource as we work with the governor and the attorney general to protect California from the reckless overreach we expect from Donald Trump and the Republican members of Congress."

"Those who oppose the engagement of Holder cite case law in which California courts have interpreted Article VII to forbid contracting with private citizens for services that are of a kind that state employees selected through civil service could perform adequately and competently," she said. "Those opposed to the engagement of Holder argue that this prohibition includes contracting with private citizens to assist in defending California against federal actions."

However, Fromholz noted that supporters of Holder's engagement maintain that the Article VII prohibition applies only to executive agencies and not to the legislature.

"They argue, therefore, that the legislature is free to contract with private citizens and companies—including law firms and lawyers—to assist the legislature in its lawmaking function," she said. "This includes, the supporters argue, contracting with private lawyers to assist in questions of the interaction between state and federal law."

Fromholz asserted that the arguments in favor of hiring Holder are strong. "The cases that conclude that Article VII prohibits the government from contracting with private citizens or companies arose out of the actions of various executive agencies"—not the legislature, she noted.

In addition, Section 4 of Article VII exempts employees hired by the legislature from civil service requirements. And there is no express prohibition on the legislature retaining lawyers.

Clearer Path Ahead?

"If, as the legislature evidently expects, the incoming administration takes action to call the legitimacy of California laws into question, these efforts by the federal government may well cause confusion among those who are working to comply with California law, and are charged with understanding the difference between California and federal law," Fromholz said.

"Of course, this is a big part of the job of HR professionals, so efforts by the federal government to change, invalidate or interfere with California law may well make the HR job more difficult," she added. "If Holder is successful in helping the legislature defend against any such actions by the new administration, that success should make the path ahead clearer for HR professionals."

However, Kiley told SHRM Online, "While different people may have differing views on Eric Holder or the incoming presidential administration, we should all be able to agree that as legislators our actions must be in accordance with the law."

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Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.